After the presiding judge, the Hon. William Alsup, ruled the other day on the parties' remaining disputes over proposed terms for a protective order in the Oracle v. Google litigation, Oracle and Google then got together and have come up with their own solution, a proposed stipulated protective order they are submitting to the court for approval. There is also a scheduling agreement on such things as what format to provide discovery materials in.
The judge had said if either side didn't like his decision, they could file motions, but instead they have resolved the issues that they told the judge they couldn't resolve before. His order gave them a big nudge, and they have now come up with something they can each live with. I think he figured if he gave them a map of his preferences, they could get to their final destination quickly without him having to decide every last detail. And that may explain why he didn't provide any substitute language on a prosecution bar.
He was, I gather, trying to prod the parties into settling their remaining issues themselves. And it looks like it worked. They have now done so.
Google won the issue of in-house counsel, but it had to come up with new prosecution bar language. So that is the main change. As for other highly confidential materials, there is a process for allowing up to five in-house counsel to view it, but never source code. And Sun lawyers, now Oracle America lawyers, are defined as house counsel, hence barred from viewing code.
Keep in mind that this is just about who can see what in discovery. It doesn't necessarily indicate what will or won't be sealed in filings, as there is a separate rule about that, but it does mean we won't be seeing properly designated confidential materials. It doesn't tell us what will be admissible as evidence either. That comes later. This is just the first real step in the discovery process, which is the biggest part but still only one part of the whole litigation process.
Here are the filings:
The purpose of this kind of agreement is basically to restrict the use of information shared to just the particular litigation. And to minimize temptation, there are restrictions on who can see what.
12/17/2010 - 66 - STIPULATION Joint [PROPOSED] Protective Order by Google Inc., Oracle America, Inc.. (Peters, Marc) (Filed on 12/17/2010) (Entered: 12/17/2010)
12/17/2010 - 67 - RESPONSE to re 56 Case Management Scheduling Order, Case Referred to Private ADR, Set Scheduling Order Deadlines,,,,,, Joint ESI Agreement by Oracle America, Inc.. (Ballinger, Richard) (Filed on 12/17/2010) (Entered: 12/17/2010)
If you recall, Oracle wanted five in-house attorneys to be able to view source code, but Judge William Alsup wrote he didn't see why they'd need to see source code at all, but if a need arose, he'd handle the request on an ad hoc basis:
With respect to the first dispute, the Court is of the view that neither party has any need to have in-house counsel review any source code belonging to the other party, much less have five in-house counsel do so. Instead, the experts can review source code from both parties and make any necessary comparisons. If and when any settlement discussions require final sign-off or input from in-house-counsel based on the other party’s source code, the court would consider making an ad hoc exception at that time. Now, there's no such ad hoc process in the picture, since the parties have now agreed that no in-house counsel gets to view source code, as per paragraph 9b:
... this provision ... shall not apply to information designated as “HIGHLY CONFIDENTIAL – SOURCE CODE,” to which no
House Counsel shall have access, per paragraph 9(b);... So Google won that battle. Lawyers are realists, and when you see you are going to lose, you back away gracefully.
There is now a process whereby up to five in-house lawyers can view other highly confidential materials, so long as they are in a particular category, as I'll show you in a minute.
(b) Protected Material designated as “HIGHLY CONFIDENTIAL – SOURCE CODE” shall be subject to all of the protections afforded to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”, and may be disclosed only to the individuals to whom “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information may be disclosed, as set forth in Paragraphs 7.3 and 7.4, with the exception of Designated House Counsel.
But that wasn't all the judge addressed:
With respect to the second dispute, there should be a prosecution bar, but the one proposed by Google Inc. seems overbroad in that it applies to all patents or patent applications “relating to Java, Android, mobile platforms and devices, or virtual machines.”So he addressed three issues, ruling that:
The Court understands the need to keep source code confidential, but both sides should be aware that overclassification of documents produced in discovery may lead to declassification of large swathes of improperly classified material.
- no in-house counsel were to view source code, but with the possibility of ad hoc exceptions;
- that Google's prosecution bar language was too broad (but without providing a substitute); and
- threatening that overclassification of source code as highly confidential could lead to him declassifying it.
The new proposed stipulation responds to each item.
1. The Prosecution Bar:
What's a prosecution bar? Here's a list of Virginia Journal of Law and Technology articles where you can find A Prosecution Bar in Patent Litigation Should Be the Exception Rather than the Rule [PDF] that explains what a prosecution bar is:
A litigant in patent litigation may seek a protective order containing a “prosecution bar” that prohibits attorneys who receive a disclosing party’s confidential information from prosecuting patent applications on behalf of the receiving party. Why?
You don't want some donkey to file a lawsuit just to get discovery in it and then immediately run to the USPTO with it, gaining an undeserved advantage, which would inspire endless patent lawsuits for that one purpose. And heaven only knows, patent owners need no inspiration to file any more lawsuits than they already do. You may have observed by now, in reading Groklaw over the years, that proprietary software companies lack the higher ethics of the FOSS community, so they need to set up systems to block such vermin tactics as filing a lawsuit just to gain an unfair advantage in other litigation or agency processes.
The judge said there should be a prosecution bar, but he didn't say where the line was, so the parties have drawn one up. I've put it in a chart, so you can see what Google originally asked for, which the judge thought was too broad and which that article would argue also was too broad, with the new stipulated terms on the right, and I've marked in red the changes in the new version and in blue in the original:
|Original Google Suggestion|| New Stipulated Language|
8. PROSECUTION BAR|
Absent written consent from the Producing Party, any individual who receives access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” information shall not be involved in the prosecution of patents or patent applications relating to Java, Android, mobile platforms and devices, or virtual machines, including without limitation the patents asserted in this action and any patent or application claiming priority to or otherwise related to the patents asserted in this action, before any foreign or domestic agency, including the United States Patent and Trademark Office (“the Patent Office”). For purposes of this paragraph, “prosecution” includes directly or indirectly drafting, amending, advising, or otherwise affecting the scope or maintenance of patent claims. To avoid any doubt, “prosecution” as used in this paragraph does not include representing a party challenging a patent before a domestic or foreign agency (including, but not limited to, a reissue protest, ex parte reexamination or inter partes reexamination). This Prosecution Bar shall begin when access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” information is first received by the affected individual and shall end two (2) years after final termination of this action.
8. PROSECUTION BAR|
Absent written consent from the Producing Party, any individual who receives access to
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” information shall not be involved in the prosecution of patents or patent applications relating to operating systems, virtual machines, pre-processors, compilers, linkers, interpreters, middleware, or applications for mobile platforms or devices, including without limitation the patents asserted in this action and any patent or application claiming priority to or
otherwise related to the patents asserted in this action, before any foreign or domestic agency, including the United States Patent and Trademark Office (“the Patent Office”). For purposes of this paragraph, “prosecution” includes directly or indirectly drafting, amending, advising, or otherwise affecting the scope or maintenance of patent claims. To avoid any doubt, “prosecution” as used in this paragraph does not include representing a party challenging a patent before a domestic or foreign agency (including, but not limited to, a reissue protest, ex parte reexamination or inter partes reexamination). This Prosecution Bar shall begin when access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” information is first received by the affected individual and shall end two (2) years after final termination of this action.
Does that seem more or less broad to you, or maybe a little of each? Me too. But both sides have agreed, so there you are.
By the way, on that same page as the prosecution bar article you can
find another article titled Patentable Subject Matter: What is the Matter with Matter? [PDF] which argues that "novel man-made encoded EM signals are inventions that should satisfy the requirements to be patentable subject matter" because they can be "designed and manufactured by human beings" and are "intransient and tangible, and they exert pressure". The suggestion is that "signal" should be interpreted as a physicist would, not an electrical engineer, because, you know, E = mc2, so to a physicist, energy is matter, and matter is patentable:
But, in science, the word ―energy has precise descriptions such as E = mc2 where ―E is energy, ―m is mass, and ―c is a constant, the speed of light. A second difficulty is that the scientific understanding of EM signals has evolved substantially over the last three centuries. Long ago, the scientific concepts of ―matter and ―energy were distinct. In modern physics, however, they are a distinction without a difference. Thus, when the Nuijten opinion states EM signals are only energy, or implies EM signals are not matter, this is not accurate scientifically. I know. They'd patent sunlight if they could.
I realize reading this makes you retch, but I mention it so you know what judges may be reading. Also, if these lawyers can argue that the USPTO should follow science, specifically physics, why shouldn't we argue that software patents should be viewed similarly, in harmony with what software programmers naturally understand to be true and mathematically accurate? At the moment, the entire patent system in the US ignores what pretty much all software engineers are trying to tell them, namely that software patents should not be granted at all, because, for one thing, software is algorithms, and you can't patent algorithms. I mean, let's *all* be scientific.
Some of you will say there is descriptive language too. But what is the difference between saying 1 + 1 = 2 or instead saying I went to the corner store and bought one Mars bar and one Almond Joy, so now I have two candy bars? The underlying math is identical, the only difference being in the second version I added descriptive language around the math. I can probably copyright the second version's descriptive language, but should I be able to patent it? It's still just mathematics, after all, a way of describing a math problem, as you can readily recall from tests you took in school: "If ten people get on the train at the station, and two get off at the first stop..." etc. Software patent applications are just language describing what the algorithms do, just as in my simple example, describing a process that you can also "describe" in mathematics, if you are skilled in the field, which judges sadly are not so much. Just saying. Someone should write up a paper explaining all this.
Who Can See What?
Getting back to the stipulated protective order, the
overview is that they have carved out who can view each of three types of confidential materials:
Confidential materials, the lower level category, "things that qualify for protection under Federal Rule of Civil Procedure 26(c)", can be viewed by outside counsel, house counsel if necessary and if he or she has signed an NDA, and employees, directors, and officers of a company if they also sign an NDA, technically called an "Agreement to be Bound". It is attached at the end, if you want to read it. FRCP 26(c) materials are things like "trade secret or other confidential research, development, or commercial information". Also allowed to see such are permitted experts, also under the NDA, the court, court employees, court reporters, jury consultants, witnesses during their depositions, if necessary and if they too sign the NDA, and of course whoever wrote the document or whatever it is or knows about it already. That's a lot of people, if you think about it.
- ordinary confidential materials like trade secrets and proprietary business information
- highly confidential -- attorneys'-eyes-only materials defined as "extremely sensitive 'Confidential Information or Items,' disclosure of which to another
Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less restrictive means"
- highly confidential -- source code, which they define as computer code plus "associated comments and revision histories, formulas, engineering specifications, or schematics that define or otherwise describe in detail the algorithms or structure of software or hardware designs" which could result in substantial harm if revealed to another party (like, I guess, the Apache Foundation or Open Handset Alliance folks if any of them end up a party to this litigation someday) or a non-party (like us chickens sitting in the last row of the peanut gallery).
"HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY" and "HIGHLY CONFIDENTIAL - SOURCE CODE" can be viewed by outside counsel of record, the court and personnel, necessary experts by permission, all bound by the NDA, and, if necessary, attorneys' eyes only materials can be viewed by up to five in-house lawyers who sign an NDA, who reasonably need to see the materials for the litigation, *and* who have no "involvement in competitive decision-making". But they can't see source code. And they have to write up a request if they want in-house counsel to see even the attorneys' eyes only materials, because it's not just on the honor system. The request must set forth the following:
... the full name of the Designated House Counsel and the city and state of his or her
residence, and (2) describes the Designated House Counsel’s current and reasonably foreseeable future primary job duties and responsibilities in sufficient detail to determine if House Counsel is involved, or may become involved, in any competitive decision-making. They have to file a written request before they can show experts this highly confidential material also. The request for that must say what they want to show the expert, and all of the following:
(2) ... the full name of the Expert and the city and state of his or her primary residence, Get the picture? They don't trust experts, I gather, at least not all of them, and they don't trust each other not to find clever ways to behave. And after what you saw in the SCO litigation, would you? The idea is to corral all the skunks you can and neuter them, realizing that skunks are skunks and they won't stop doing what they do unless they can't. Not saying anybody in this picture is a skunk or that all experts are skunks, but just in case any proved to be, you want them neutered and inside a cage, so to speak.
(3) ... a copy of the Expert’s current resume,
(4) ... the Expert’s current employer(s),
(5) ... each person or entity from whom the Expert has received compensation or funding for work in his or her areas of expertise or to whom the expert has provided professional services, including in connection with a litigation, at any time during the
preceding five years, and
(6) identifies (by name and number of the case, filing date, and location of court) any litigation in connection with which the Expert has offered expert testimony, including through a declaration, report, or testimony at a deposition or trial, during the preceding five years.
The agreement defines house counsel as "attorneys who are employees of a party to this action, except, for the purposes of this agreement only, counsel who are employees of any Oracle entity are considered House Counsel". I would understand that to mean that Sun attorneys swept into the Oracle family are house counsel. And later the agreement specifically carves out Sun lawyers, now Oracle America lawyers, from being defined as outside counsel, so Google doesn't want them casually involved, I gather, with the confidential stuff. You can see both documents are signed by Oracle America lawyers on the Oracle side, and Google noticed. This language demonstrates what Google's original concern must have been in opposing in-house counsel getting access to such materials.
Here's what they mean by not being involved in "competitive decision-making":
For purposes of this Order, “competitive decision-making” shall mean decision-making relating to any and all
decisions made in light of or that take into account information regarding a competitor or potential competitor, including but not limited to such decisions regarding contracts, marketing, employment, pricing, product or service development or design, product or service offerings, research and development, or licensing, acquisition or enforcement of intellectual property rights (other than this action), provided, however, that this phrase shall be interpreted in accordance
with the relevant case law.
Here's the definition of "Designated In-House Counsel", and as you can see it just means any in-house counsel that a party wants to show highly confidential materials to:
2.4 Designated House Counsel: House Counsel who seek access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in this matter.
I would take all that to mean that the higher muckety mucks in the Legal Departments don't get to view source code ever, but that each side can designate some lower level person or persons in Legal to handle other highly confidential materials in a Chinese-wall kind of setup, if a reasonable need arises and they get permission.
But for source code designated "HIGHLY CONFIDENTIAL – SOURCE CODE" it's even tighter. No one but experts who sign an NDA, the court, professional jury or trial consultants, and "Professional Vendors to whom disclosure is reasonably necessary for this litigation" who also sign an NDA can view the source code. Professional vendors are outside litigation support services, like companies or individuals who prepare trial exhibits or do photocopying. So it's not a lot of people getting to view the source code.
If the other side already knew something because it's in the public domain or if they get it from someone lawfully some other way, it's not covered by any confidentiality agreement restrictions.
And there is a process to challenge the confidential designation of materials, with the parties trying to work it out, but if they fail, the issue is to be handled by filing a motion, with the "burden of persuasion" resting on the party trying to keep the information confidential.
Here's part of the process for objecting:
7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items to Designated House Counsel or Experts....
That's intriguing, I think, that they require voice to voice discussion. Email won't be sufficient or text messaging or even faxed materials. They have to at least pick up the phone. Or a more modern equivalent. That's because people tend to be snarkier in email than face to face, and sometimes it's totally not intentional. You miss nuances, and frankly that's the heart of legal discussions.
(c) A Party that receives a timely written objection must meet and confer with the Designating Party (through direct voice to voice dialogue) to try to resolve the matter by agreement within seven days of the written objection. If no agreement is reached, the Party seeking to make the disclosure to Designated House Counsel or the Expert may file a motion as provided in Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) seeking permission from the court to do so. Any such motion must describe the circumstances with specificity, set forth in detail the reasons why the disclosure to Designated House Counsel or the Expert is reasonably necessary, assess the risk of harm that the disclosure would entail, and suggest any additional means that could be used to reduce that risk. In addition, any such motion must be accompanied by a competent declaration describing the parties’ efforts to resolve the matter by agreement (i.e., the extent and the content of the meet and confer discussions) and setting forth the reasons advanced by the Designating Party for its refusal to approve the disclosure. In any such proceeding, the Party opposing disclosure to Designated House Counsel or the Expert shall bear the burden of proving that the risk of harm that the disclosure would entail (under the safeguards proposed) outweighs the Receiving Party’s need to disclose the Protected Material to its Designated House Counsel or Expert.
And they have also fine-tuned the part about not over-classifying source code or anything else as highly confidential by limiting the sealing to only those parts of documents or whatever it is that needs to stay confidential. If a party overdoes it, they agree the party is subject to sanctions.
Whatever is designated as confidential stays that way even after the litigation is finally resolved, unless the party whose confidential material it is agrees in writing to lift the confidentiality. Everything but one archival copy gets returned or destroyed 60 days after it's done. So, if you were hoping to view source code in this case someday, you never will from this lawsuit. I am kind of stumped as to what in this litigation is not already known, but apparently the parties feel there could be some sooper seekrit source code, which if made public would cause the sky to fall.
All right. You caught me. I find proprietary software old-fashioned and ridiculous, and all the litigation over it too. I know Larry Ellison doesn't agree. So here we are, and I'll try not to curl my lip too obviously. But I confess, I can't imagine wanting to use anyone's proprietary code. You risk so much. And you have to come up with complicated documents like this just to protect it. For example, let's say your appropriately designated people get permission to view the source code. Here's how they have to do it:
(c) Any source code produced in discovery shall be made available for inspection, in a format allowing it to be reasonably reviewed and searched, during normal business hours or at other mutually agreeable times, at an office of the Producing Party’s counsel or another mutually agreed upon location. The source code shall be made available for inspection on a secured computer in a secured room without Internet access or network access to other computers, and the Receiving Party shall not copy, remove, or otherwise transfer any portion of the source code onto any recordable media or recordable device. The Producing Party may visually monitor the activities of the Receiving Party’s representatives during any source code review, but only to ensure that there is no unauthorized recording, copying, or transmission of the
source code. Amazing, isn't it? From the perspective of a GPL girl, it's funny. Why would anyone want to use code that is so protected, even lawyers are not allowed to look at it without such conditions as these? All they leave out is that you must chew and swallow the paper the code is written on, if caught, and you are to provide only your name, rank and serial number. Oracle America's lawyers filed this, so this probably reflects the Sun/Oracle mindset more so than Google's, but I'm sure Google would fight to protect its secret sauce too.
(d) The Receiving Party and its experts may need to utilize certain automated forensic tools as part of the source code review procedure. Such tools may be used to compare source code. The parties will work together to agree on acceptable forensic tools and procedures.
(e) The Receiving Party may request paper copies of limited portions of source code that are reasonably necessary for the preparation of court filings, pleadings, expert reports, or other papers, or for deposition or trial, but shall not request paper copies for the purposes of reviewing the source code other than electronically as set forth in paragraph (c) in the first instance. The Producing Party shall provide all such source code in paper form including bates numbers and the label “HIGHLY CONFIDENTIAL - SOURCE CODE.” The Producing Party may challenge the amount of source code requested in hard copy form pursuant to the dispute resolution procedure and timeframes set forth in Paragraph 6 whereby the Producing Party is the “Challenging Party” and the Receiving Party is the “Designating Party” for purposes of dispute resolution.
(f) The Receiving Party shall maintain a record of any individual who has inspected any portion of the source code in electronic or paper form. The Receiving Party shall maintain all paper copies of any printed portions of the source code in a secured, locked area. The Receiving Party shall not create any electronic or other images of the paper copies and shall not convert any of the information contained in the paper copies into any electronic format. The
Receiving Party shall only make additional paper copies if such additional copies are (1) necessary to prepare court filings, pleadings, or other papers (including a testifying expert’s expert report), (2) necessary for deposition, or (3) otherwise necessary for the preparation of its case. Any paper copies used during a deposition shall be retrieved by the Producing Party at the end of each day and must not be given to or left with a court reporter or any other individual.
What's the overview, then? They decided it was prudent not to leave it to the judge to decide the details of all this. Lawyers like as much clarity and certainty as they can get, which is why they try to keep their clients out of courtrooms whenever possible. And by spelling out all the steps to be taken to object, it makes it easier later to tell a judge that the other side is misbehaving, if they do, because you don't have to argue what is reasonable, only what the agreement says and that they failed to comply with.
Finally, I sometimes see comments calling for more simple language in legal documents. In some consumer documents, that might make sense, actually. But lawyers in a sophisticated litigation like this one speak legalese, which is not the same as English, even though it uses English words. It is more precise. That's why you have to parse it out carefully, and it's hard, and it takes time and thought. In fact, I may have made errors, because it's Saturday, and I'm having trouble concentrating, and I definitely didn't explain all the terms in my rushing around. For example, there is a process for if a non-party that has a confidentiality agreement with a party has information the other side wants. If I were Apache, I'd read that part and notice the time limits to respond, should such a request surface. Because if a non-party doesn't timely object within 14 days, the party being asked for the materials can turn them over despite the confidential nature of the information. And there is a lot more in the agreement I won't take time to explain, but you will see it for yourself if you read the PDF.
Anyway, the reason I wanted to explain all that I have is to give you an idea of what it is lawyers do, that it's all about trying to foresee problems and figuring out the best way to avoid them or to minimize damage if they can't be prevented altogether. Behind each term in this agreement, there was a great deal of thought, very specifically trying to foresee who needs to see what and who ought to be prevented from gaining access, what could go wrong, etc. They try to think of all conceivable issues, way beyond what you'd expect to happen. There are dueling interests, so that makes it more complicated than if you were simply trying to figure out what you personally want and don't want. And that is why when you read a document written by lawyers for other lawyers, it's going to be complex and will require some effort to decipher, in that you have to understand their language, because they are not thinking or writing in yours. Kind of like software code.
And just like code, there's a bit of art to it too, and enjoyment in the composing, especially when it works, because like code, it's words that also act, that affect real results. Oh noes. Next they'll claim they can patent legalese because it's tangible in its results.
Update: And the judge has signed off on the stipulated wording, with some further direction indicating how much he hates improper sealing of documents:
One thing that would disturb me greatly if I were a party is that confidential documents or portions thereof are not shredded. The court just recycles:
12/20/2010 - 68 - ORDER APPROVING STIPULATED PROTECTIVE ORDER SUBJECT TO STATED CONDITIONS. Signed by Judge Alsup on December 20, 2010. (whalc1, COURT STAFF) (Filed on 12/20/2010) (Entered: 12/20/2010)
12/20/2010 - 69 - NOTICE of Appearance by Heather Janine Meeker on Behalf of Google Inc. (Meeker, Heather) (Filed on 12/20/2010) (Entered: 12/20/2010)
Although chambers copies should clearly designate which portions are confidential, chambers copies with confidential materials will be
handled like all other chambers copies of materials without special restriction, and typically will be recycled, not shredded. Eek. I hope nobody with shall we say an entrepreneurial spirit at the court decides to go into a side business.
Here's the wording of the judge's order:
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
ORACLE AMERICA, INC.,
No. C 10-03561 WHA
ORDER SUBJECT TO
The stipulated protective order submitted by the parties is hereby APPROVED, subject to the following conditions, including adherence to the strict caution against sealing orders by the Ninth Circuit (as set out below):
1. The parties must make a good-faith determination that any information designated “confidential” truly warrants protection under Rule 26(c) of the Federal Rules of Civil Procedure. Designations of material as “confidential” must be narrowly tailored to include only material for which there is good cause. A pattern of over-designation may lead to an order un-designating all or most materials on a wholesale basis.
2. In order to be treated as confidential, any materials filed with the Court must be lodged with a request for filing under seal in compliance with Civil Local Rule 79-5. Please limit your requests for sealing to only those narrowly tailored portions of materials for which good cause to seal exists. Please include
all other portions of your materials in the public file and clearly indicate therein where material has been redacted and sealed. Each filing requires an individualized sealing order; blanket prospective authorizations are not allowed by Civil Local Rule 79-5.
3. Chambers copies should include all material — both redacted and unredacted — so that chambers staff does not have to reassemble the whole brief or declaration. Although chambers copies should clearly designate which portions are confidential, chambers copies with confidential materials will be
handled like all other chambers copies of materials without special restriction, and typically will be recycled, not shredded.
4. In Kamakana v. Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006), the Ninth Circuit held that more than good cause, indeed, “compelling reasons”
are required to seal documents used in dispositive motions, just as compelling
reasons would be needed to justify a closure of a courtroom during trial. Otherwise, the Ninth Circuit held, public access to the work of the courts will be unduly compromised. Therefore, no request for a sealing order will be allowed on summary judgment motions (or other dispositive motions) unless the movant first shows a “compelling reason,” a substantially higher standard than “good cause.” This will be true regardless of any stipulation by the parties. Counsel are warned that most summary judgment motions and supporting material should be completely open to public view. Only social security numbers, names of juveniles, home addresses and phone numbers, and trade secrets of a compelling nature (like the recipe for Coca Cola, for example) will qualify. If the courtroom would not be closed for the information, nor should any summary judgment proceedings, which are, in effect, a substitute for trial. Motions in limine are also part of the trial and must likewise be laid bare absent compelling reasons. Please comply fully. Noncompliant submissions are liable to be stricken in their entirety.
5. Any confidential materials used openly in court hearings or trial will not be treated in any special manner absent a further order.
6. This order does not preclude any party from moving to undesignate information or documents that have been designated as confidential. The party seeking to designate material as confidential has the burden of establishing that the material is entitled to protection.
7. The Court will retain jurisdiction over disputes arising from the proposed and stipulated protective order for only NINETY DAYS after final termination of the action.
IT IS SO ORDERED.
Dated: December 20, 2010.
UNITED STATES DISTRICT JUDGE